A little-known but powerful clause in CAN-SPAM ensures that spammers cannot hide behind their affiliates to avoid CAN-SPAM liabilty. Prior to the passage of CAN-SPAM, people selling products which were being advertised by spam were often able to escape liability by saying “Hey, it wasn’t me who sent the email.” However, it often was their affiliates, operating openly under an affiliate program through which the affiliates would get a kick-back for product sales resulting from the spam which the affiliate sent on behalf of the product vendor.
Enter the little-known clause of CAN-SPAM, known affectionately as the “McCain Amendment”, after its sponsor, Senator John McCain. I am inordinately proud of the McCain Amendment, because I was intimately involved with the drafting of the language of the McCain Amendment, and because while little-known, it’s got star wattage.
The McCain Amendment basically says that even if you do not yourself press “send” and inject the spam into the Internet stream, if you in any way profit from the sending of the spam then you are as guilty as if you had pressed “send” yourself. And it does no good to say “but gosh, Mr. FTC man, I didn’t know that I was engaging the services of a spammer“, if it can be proven that you reasonably should have known. People who truly couldn’t have known need not worry, but once you are on notice that, for example, your affiliates are spamming, and where you are profiting from that spamming, watch out.
Thus was the case with Phoenix Avatar, purveyors of an ineffective but much-spammed about diet patch. Sued last year by the FTC, Phoenix Avatar originally tried fighting the case, believing that the FTC would be unable to prove that they themselves had violated CAN-SPAM, as a large percentage, if not the lion’s share, of the spam hawking the diet patch came from Phoenix Avatar affiliates rather than directly from Phoenix Avatar itself. But Phoenix Avatar certainly profited from the spamming, and in July a Federal judge underpinned the primary thrust of the McCain amendment language and held that CAN-SPAM is “not limited to those who physically cause spam to be transmitted, but also extends to those who ‘procure the origination’ of offending spam.”
Consequently, Phoenix Avatar settled their case with the FTC last week.
Spam sent by third-parties on behalf of the primary vendor makes up a huge percentage of the spam which is sent. Going after the scum hiding behind the affiliates and other third-parties, and finally being able to hold them accountable, is an enormously powerful tool in the fight against spam.
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